there are two questions preoccupying legal writers: How will Justice Anthony Kennedy, the court’s wild card, vote, and how will Justice Antonin Scalia behave? … Can Justice Scalia hold his ego and intemperance in check for the two hour and 50 minute duration of the two marriage argumentss?

Justice Scalia did seem to choose his words more carefully than he has in some other recent cases – perhaps because he knows that, as Samuels wrote, his increasingly intemperate remarks both on the bench and off are raising questions about whether he should recuse himself from cases like these.

But that didn’t stop Scalia both from getting distorting reality and straining credulity.

It happened during oral argument on Hollingsworth v. Perry, the case challenging Proposition 8, which bans same-sex marriage in California. Charles Cooper, counsel for supporters of Proposition 8, was struggling to name any actual harm caused by same-sex marriage. So Justice Scalia tried to help him out, declaring:

Justice Antonin Scalia

I don’t know why you don’t mention some concrete things. If you redefine marriage to include same-sex couples, you must — you must permit adoption by same-sex couples, and there’s -­ there’s considerable disagreement among — among sociologists as to what the consequences of raising a child in a — in a single-sex family, whether that is harmful to the child or not. … I take no position on whether [same-sex marriage is] harmful or not, but it is certainly true that — that there’s no scientific answer to that question at this point in time.

we now have several dozen empirical studies on children raised by lesbian and gay parents conducted over a period of several decades. While no study’s methodology is perfect, the findings of these studies speak with one voice. As one expert testified during the Prop 8 trial, these studies have shown “very conclusively that children who are raised by gay and lesbian parents are just as likely to be well-adjusted as children raised by heterosexual parents.

Indeed, after a four-year review of the scientific literature, the American Academy of Pediatrics declared its support for same-sex marriage. But what do pediatricians know about children anyway? It’s the sociologists who count, right?

But, as Ezra Klein notes in The Washington Post, the American Sociological Association also strongly supports same-sex marriage. The organization said so in an amicus brief filed in this very case. The brief notes that

The claim that same-sex parents produce less positive child outcomes than opposite-sex parents—either because such families lack both a male and female parent or because both parents are not the biological parents of their children—contradicts abundant social science research. Decades of methodologically sound social science research, especially multiple nationally representative studies and the expert evidence introduced in the district courts below, confirm that positive child wellbeing is the product of stability in the relationship between the two parents, stability in the relationship between the parents and child, and greater parental socioeconomic resources. Whether a child is raised by same-sex or opposite-sex parents has no bearing on a child’s wellbeing.

Perhaps even more striking was Justice Scalia’s claim that he takes “no position” on whether same-sex marriage is harmful.

In his dissent in a 1996 Supreme Court decision overturning a voter-approved, anti-gay referendum in Colorado, Scalia wrote in support of the voter majority, “I had thought that one could consider certain conduct reprehensible — murder, for example, or polygamy or cruelty to animals — and could exhibit even ‘animus’ toward such conduct.”And in 2003, after the Supreme Court negated a law in Texas that had criminalized same-sex “sodomy,” Scalia wrote in dissent, “The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are ‘immoral and unacceptable’ — the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality and obscenity.”

by Jonathan Rapping, President of Gideon’s Promise, an organization dedicated to training and supporting public defenders across the South.

Detection dogs have become a powerful weapon used in the effort to ferret out crime. But because their use aids law enforcement at the expense of personal privacy, the practice has important Fourth Amendment implications. The Supreme Court recently decided two cases that will help shape the way police use canines to interact with civilians in their quest to gather evidence of wrongdoing. These cases address two important issues: when police may use canines to investigate civilians; and how the public can be sure these dogs are sufficiently reliable to protect against any unwarranted invasion of privacy.

In a case decided this week addressing the first issue, Florida v. Jardines, the Court drew a line at the doorstep to the home, holding that for police to bring a canine onto a person’s front porch to search for evidence inside the home violates the Fourth Amendment. While this decision provided a sigh of relief to those of us concerned about our shrinking protections from police scrutiny, it is muted by the Court’s ruling last month in Florida v. Harris. This case, which addresses the second issue, encourages more aggressive use of canines against civilians outside of the home. By placing the burden on the target of the operation to prove that either the dog or its handler was unqualified, the Harris Court makes it difficult for victims of reckless policing to show that the police violated constitutional standards. Because almost all canine/civilian encounters happen outside the home, the ruling will place ever more cumbersome burdens on the public defenders tasked with defending the vast majority of those affected by these rulings.

Since public defenders have the responsibility of defending our constitutional protections in cases brought against the most vulnerable among us, we must be mindful not to forget the importance of the Fourth Amendment to every citizen. Perhaps Benjamin Franklin said it best in words inscribed on a plaque inside the Statue of Liberty: “They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.” The colonists who built our system of governance were deathly afraid of power concentrated in the hands of government agents because of their experience with oppressive rule by the English. They did not create our Constitution to protect us from crime. They created this awe-inspiring document out of a belief that nothing crushes the human spirit and threatens our fundamental rights more than a tyrannical government. And, as the colonists knew from their experiences in England, few government actions threaten our liberty more than the confiscation and examination of our personal belongings and property, for this invasion of our privacy is an almost primal offense to our very natures. The Fourth Amendment, which guards against unreasonable searches and seizures, was a response to precisely this kind of invasive governmental practice.

I begin each semester of my law school criminal procedure course by telling the class that every Supreme Court decision interpreting the Fourth Amendment serves as a referendum on how seriously we take Benjamin Franklin’s words. Each case tells us a little more about how the Court defines the appropriate balance between the need to give law enforcement authority to ensure we are not breaking important laws–in the name of “safety”– and the assurance we are free from government interference. Looking at recent Supreme Court rulings, it is unfortunately true that the concern for safety has too often trumped our right to personal liberty. One of the most effective examples of the safety vs. liberty problem is a YouTube video called Breakfast in Collinsville, which documents a traffic stop and vehicle search conducted by an Illinois canine officer named Michael Reichert.

In the video, Reichert becomes suspicious of two Ohio men on their way home from a Star Trek exhibit in St. Louis, Missouri and follows them for several miles. He then pulls the car over after claiming to have seen it weave over the middle line and back. After verifying that both men have no warrants and issuing a warning, the two suspects should have been let go. Instead, Reichert attempts to pressure the owner into consenting to a car search. When that fails, Reichert “detains the car” (claiming the men are free to leave without the car) and walks a canine around the car to sniff for drugs. After some suggestive prompting, the dog barks, giving Reichert the green light to conduct the unwarranted search he obviously set out to do from the beginning. Not surprisingly, there are no drugs in the car and Reichert finally allows the men to continue their journey home.

While Reichart almost certainly violated the Fourth Amendment when he impermissibly extended the detention by having the dog walk around the car, the video illustrates the leeway the Supreme Court has provided police to be unnecessarily aggressive in their quest to ferret out crime. In another case called Whren v. United States, the Supreme Court authorized police to stop and search individuals for any reason as long as they could articulate a reasonable justification for doing so. It does not matter whether the actual motive for the detention was improper. The result is that police are now free to target a driver for any reason and follow him until he violates any one of the thousands of little-known traffic regulations, something we are likely to do every time we drive. Once stopped, the Court has given police wide latitude to pressure the target to “consent” to a search, defining as “voluntary” acquiescence to authority few of us would have the courage to resist. In fact, because the police are not required to tell the targets they have the right to refuse consent, they frequently take advantage of the person’s lack of knowledge of their legal right to decline to be searched. For those occasions when the police are unable to extract consent, the Court has given them an even stronger tool: the almost completely unregulated use of the drug sniffing dog. The Court first expanded the ability of the police to use this tool in 2005 in a case called Illinois v. Caballes. There the Court held that bringing a drug sniffing dog to the scene of an otherwise valid traffic stop does not implicate the Fourth Amendment as long as the duration of the stop is not extended beyond what was necessary to facilitate the canine investigation.

The Court’s holding was based on the premise that the only thing the dog will detect is illegal contraband; something in which we have no expectation of privacy. It is only the reliability of the dog that protects the innocent citizen from a false alarm leading to an unwarranted intrusion on his right to be free from government intrusion. Justice Ginsburg dissented, arguing that even with a reliable dog, removing dog sniffs from the reach of the Fourth Amendment set a dangerous precedent under which police could walk the streets with dogs sniffing every person, package, or parked or waiting at a red light. To Justice Ginsburg, such an outcome surely infringed on the right to liberty so sacred to the Founding Fathers. Justice Souter also dissented, arguing that the premise of canine infallibility was a myth and that the Court’s holding subjected innocent people to invasions of their privacy.

Harris and Jardines provided the Supreme Court the opportunity to flesh out both of these concerns. In Jardines, the Court was asked to decide if the police could walk a canine up to a citizen’s front porch and sniff for drugs inside the home. In Harris, the Justices were tasked with considering how trial courts should go about determining the reliability of canines used to investigate drug crimes. The Court’s rulings in these cases will help define the extent to which police can use drug detection dogs to infringe on our personal liberty.

In Florida v. Jardines, Miami-Dade police suspected that marijuana was being grown at Joelis Jardines’ residence. Two officers brought a drug detection dog to Jardines’ home and led the dog to the front porch. While on the front porch, the dog indicated the presence of marijuana inside the residence. Based on this information, the officers secured a warrant to search Jardines’ home. During the search the officers recovered marijuana and Jardines was charged with trafficking. The trial court suppressed the marijuana finding that the dog sniff constituted an unreasonable search under the Fourth Amendment. The United States Supreme Court agreed with this ruling, holding that it violates the Fourth Amendment for police to bring a dog onto a person’s front porch uninvited for the purpose of searching for information inside the home. In doing so, the Court recognized that the Constitution provides explicit protection to the home and the areas immediately surrounding it.

Reading Jardines in conjunction with Caballes, the Court tells us that that there are some places police may conduct suspicionless canine sniffs – outside cars during lawful traffic stops – and others where they may not – the front porch of one’s home. The Court in Jardines gives little guidance about where it would draw the line. Justice Ginsberg’s concern in Caballes about whether police could approach citizens on the street or cars parked lawfully in a parking lot remains unaddressed. How the Court determines canines’ reliability and who has the burden of revealing information that might undermine the reliability of the dog or his handler is the question the Court took on in Florida v. Harris.

In Harris, Officer William Wheetley stopped Clayton Harris for a routine traffic violation. Wheetley sought consent to search Harris’ truck. When Harris refused, Wheetley brought Aldo, a drug dog, to sniff for narcotics. Aldo alerted at the truck’s door handle. In a subsequent search of the truck, Wheetley discovered ingredients used to manufacture methamphetamine, including pseudophedrine. However, none of the substances found in the search were among those Aldo was trained to detect. Wheetley was charged with the possession of pseudophedrine for use in manufacturing methamphetamine. While Harris was out on bail, Wheetley again stopped him for a traffic violation. Again, Wheetley had Aldo sniff the truck for drugs. Again Aldo alerted. This time Wheetley was unable to find anything incriminating inside Harris’ truck.

Harris sought to suppress the evidence found during the first search on the basis that Aldo was not reliable as required under Caballes. As evidence of Aldo’s unreliability Harris pointed to his own experience with Aldo. In that context Aldo was 0-2. Twice Aldo gave alerts for false positive results. Each time Aldo indicated he sniffed narcotics, there was nothing in Harris’ truck that Aldo was trained to detect. In opposition to Harris’ motion, the State pointed to the fact that both Wheetely and Aldo had extensive training and that Aldo did well during training exercises. The trial Court denied Harris’ motion and Harris entered a guilty plea.

On appeal, the Florida Supreme Court reversed the lower court’s ruling, finding that without more evidence of Aldo’s reliability, his alert did not give Wheetley probable cause to search Harris’ truck. The Florida Supreme Court held that the state was required to produce more evidence of the dog’s reliability, including the dog’s actual performance history in the field. The Court found that without this evidence, the trial judge would not be able to identify “such problems as a handler’s tendency (conscious or not) to ‘cue [a] dog to alert’ and ‘a dog’s inability to distinguish between residual odors and actual drugs.’” The Court concluded that officers like Wheetley, “who did not keep full records of his dog’s field performance could never have the requisite cause to think ‘that the dog is a reliable indicator of drugs.’”

The United States Supreme Court reversed the Florida Supreme Court in a unanimous decision, holding that the Florida Court placed too heavy a burden on the state. In holding that the state must be given more flexibility in how it chooses to demonstrate the reliability of a dog used to sniff for drugs, it criticized the Florida Court’s attempt to identify an evidentiary minimum that must be shown in every case. In doing so, the United States Supreme Court squarely placed the burden on the defense to bring to court the kind of evidence the Florida Supreme Court recognized as necessary to identify certain problems with drug dogs and their handlers when the state chooses not to do so.

While the Supreme Court was concerned that the Florida Court’s opinion would hamper the flexibility trial courts need to make reliability findings, it ruled without regard for the practical consequences of its decision. Left to their own devices, prosecutors may now choose not to reveal to the Court deficiencies in training or other evidence that would serve to undermine the dog’s reliability. Without the requirements imposed by the Florida Court, it will be incumbent on the defense to expose this information and present it to the trial judge.

By putting this burden on the state, the Florida Supreme Court ensured that when the state sought to justify intrusion on personal liberty based on a canine sniff, it would be responsible for presenting to the court not only information that supported the dog’s reliability but also evidence that might undermine it. Given that the state has the interest in using the dog, and that it chooses how much information on the dog’s effectiveness is required to deem the dog reliable, the Florida Supreme Court saw it as proper to place upon the state the responsibility of providing this information to the trial judge.

In so ruling, the Florida Supreme Court probably considered certain realities of the criminal justice system concerning a defendant’s right to adequate counsel and the likelihood that such counsel will be provided. Eight out of ten poor people accused of crimes in this country rely on court-appointed attorneys to ensure their rights are protected. When the state seeks to convict an accused, it must also ensure he has an attorney with the time and resources necessary to investigate and litigate important legal issues. It is an unfortunate fact that in most of this country states have not lived up to their obligation. Florida is no exception. There, the average public defender handles 500 cases per year. This leaves roughly 4 hours to devote to each case (assuming the lawyer works 40 hours per week for 50 weeks each year), including time to meet with the client, conduct investigation, research legal issues, make court appearances, and complete other necessary tasks.

Most public defenders are far too overwhelmed to engage in the kind of investigation required to unearth evidence to undermine canine reliability. Since there is no incentive for prosecutors and police to willingly disclose such evidence, courts will rarely learn information necessary to inform their decisions about how to balance law enforcement investigative needs with our liberty interests. Confronted only with the evidence the state chooses to present, more courts will erroneously conclude this evidence is reliable regardless of the qualifications of the dog or the handler.

By allowing the state to only present information that supports the dog’s reliability and excusing it from having to also include evidence that undermines that conclusion, the Supreme Court provides an incentive for states to only give the trial court a fraction of the information needed to accurately decide this critical issue. By placing the burden on defense counsel, most of whom are overworked court-appointed counsel, to figure out what other information exists and bring it to court, the Supreme Court significantly decreases the chances that the trial court will have all the information relevant to make an accurate decision. The result will be an increase in cases in which trial courts wrongly conclude poorly trained dogs are reliable. In turn, this creates a disincentive for police departments to invest in training drug dogs and their handlers. As a result, dogs will make more mistakes and innocent people will be subject to more frequent intrusions on their liberty. But we will never hear of those cases. They rarely make it to court and the accused is released with little incentive to complain.

Former Supreme Court Justice Robert Jackson understood these systemic pressures all too well. He took a leave from his position on the Court to serve as the chief United States prosecutor at the Nuremburg trials. He was committed to upholding the rule of law but also appreciated the danger of tyrannical government. Speaking about the Fourth Amendment is his famous dissent in Brinegar v. United States, Justice Jackson wrote

Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government. And one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of these rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.

But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are themselves the chief invaders, there is no enforcement outside of court.Only occasional and more flagrant abuses come to the attention of the courts, and then only those where the search and seizure yields incriminating evidence and the defendant is at least sufficiently compromised to be indicted. If the officers raid a home, an office, or stop and search an automobile but find nothing incriminating, this invasion of the personal liberty of the innocent too often finds no practical redress. There may be, and I am convinced that there are, many unlawful searches of homes and automobiles of innocent people which turn up nothing incriminating, in which no arrest is made, about which courts do nothing, and about which we courts do nothing, an about which we never hear.Courts can protect the innocent against such invasions indirectly and through the medium of excluding evidence obtained against those who frequently are guilty. …So a search against Brinegar’s car must be regarded as a search of the car of Everyman.

In deciding the Harris case, the Court placed a heavy burden on defense counsel to ensure trial judges have the information they need to protect Justice Jackson’s “Everyman.” During this 50th anniversary of Gideon v Wainwright, the Supreme Court case establishing the Sixth Amendment right to counsel, we would do well to remember that our most sacred rights are only worth as much as the lawyers charged with protecting them. Given that the battles to protect our liberty are fought primarily in cases involving poor defendants, forced to rely on public defenders who are spread way too thin, we should be worried. It is not only the guilty who are at risk when police are emboldened to use aggressive tactics. As Justice Jackson understood, the appellate courts, confronted only with people convicted of crimes, may overlook the toll their decisions take on those of us who follow the law. Breakfast in Collinsville serves as a chilling reminder.

Jonathan Rapping is the Director of the Honors Program in Criminal Justice at Atlanta’s John Marshall Law School and the President of Gideon’s Promise, an organization dedicated to training and supporting public defenders across the South.

by Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School

The favorite arguments of the Defense of Marriage Act’s defenders – that the the federal government can take a uniform approach to marriage while leaving states free to do what they choose – took a pounding at the Supreme Court during this morning’s argument in Windsor v. United States, strongly suggesting that if the Court reaches the merits, DOMA is dead.

Justice Kennedy jumped in first regarding DOMA’s singular exclusion of same-sex couples: “[I]t‘s not really uniformity because it regulates only one aspect of marriage. It doesn’t regulate all of marriage.” In context, the observation highlighted that DOMA does not regulate marriage uniformly but instead regulates gay people uniformly – and negatively.

Reinforcing uniformity’s weakness as a DOMA defense, Justice Breyer asked Paul Clement, the lawyer for the Bipartisan Legal Advisory Group (BLAG) that is defending DOMA, whether “uniformity” could also justify a hypothetical federal law that denied benefits to married couples under age 18: “So if you’re 17 when you get married, then no tax deduction, no medical, no nothing.” In other words, although “uniformity” might sound like a neutral (i.e. not overtly antigay) defense, it cannot explain the law’s singling out of gay and lesbian married couples.

Here, Justice Kagan came in with the closer, observing that “for the most part and historically, the only uniformity that the federal government has pursued is that it’s uniformly recognized the marriages that are recognized by the State.” DOMA’s sharp break with this tradition “suggests that maybe something — maybe Congress had something different in mind than uniformity,” she said. Though the implication may not leap off the written page, her tone – and her follow-up quotation from the 1996 House Report regarding DOMA – “Congress decided to reflect . . . collective moral judgment and to express moral disapproval of homosexuality” – made the point crystal clear.

Hear Justice Kagan make her point.

Another favorite defense – that DOMA leaves states free to do as they wish regarding marriage for same-sex couples – ended the morning looking at least as implausible as uniformity. Again, Justice Kennedy: “Congress doesn’t help the State[s] which have come to the conclusion that gay marriage is lawful.”

Here, too, Justice Ginsburg also made a powerful point. By not recognizing same-sex couples’ marriages, DOMA diminishes those marriages in profound ways. She observed: “the problem is if we are totally for the States’ decision that there is a marriage between two people, for the federal government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can’t get leave; people -­if that set of attributes, one might well ask, what kind of marriage is this?”

Of course, to get to the point of rejecting DOMA’s defenses, the Court first has to find it has jurisdiction to address them. While it seems likely that BLAG will not find five votes for its standing, the Court’s view of whether the federal government can seek review when it agrees with the lower court’s ruling is tougher to call. The Court’s conservatives expressed strong concern that the floodgates might open if the government declines to defend laws and then can appeal when those laws are struck down. But the federal government likely remains aggrieved when any of its laws is invalidated, even on the rare occasions it agrees that a law is unconstitutional.

And stepping back, given the likelihood that the Court will dismiss Perry (the Prop 8 case) without deciding the measure’s unconstitutionality, the Court risks taking its own legitimacy pounding if it backs away from addressing DOMA as well.

Suzanne B. Goldberg is the Herbert and Doris Wechsler Clinical Professor of Law; Co-Director of the Center for Gender & Sexuality Law; and Director of the Sexuality and Gender Law Clinic at Columbia Law School

Listen as Justice Ruth Bader Ginsburg cuts to the heart of the matter when it comes to the so-called Defense of Marriage Act. During today’s oral argument at the Supreme Court, she explains how the benefits denied because of DOMA are “pervasive” and create what amounts to two classes of marriage.

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